Police and prosecutors use bureaucratic confusion to keep assets they seize from the innocent
On a February evening in 2011, Derrick Walls ran into a friend at a bus stop near Third Street and Palou Avenue in the Bayview. Walls was headed to view a used car he thought he might be interested in buying. The men chatted briefly and, as the 44 bus rolled into sight, Walls shook his friend's hand to say goodbye.
Seconds after they parted ways, a police cruiser passing on the other side of the street pulled a U-turn, screeched to a halt, and discharged police officers who quickly apprehended both men.
"I guess they thought they saw something," recalled 43-year-old Walls. "I was just talking to my friend. I was going to leave because the bus was coming and I shook his hand to say 'see you later' and I guess the cops saw that and thought it was a transaction."
The officers searched both men at the site. Their discovery of cash on Walls and drugs on the other man seemed to confirm that they had just witnessed a drug deal. The $1,680 Walls had saved up for a new car was alleged to be the sale's proceeds and confiscated on the spot as evidence.
Later on at the station, a strip search of Walls yielded no evidence of drug possession or intent to sell. His friend copped to the drug charge but confessed that he'd purchased his stash elsewhere — not from Walls.
Three days later, Walls was released from custody and all charges against him were dropped. Two and a half years later, however, the city still has his money.
"I never went to court or anything," recalled Walls. "You would think they would just give my money back right then. But they told me to go to [the civil courthouse on] McAllister Street to some other people."
How assets seized in a criminal investigation migrate from the jailhouse to the civil courthouse — and how those wrongfully accused of crimes can get their money back — is not always clear.
"The state has such incredible power to wield and people have very little recourse," says attorney Nick Gregoratos with Prisoner Legal Services, a division of the San Francisco Sheriff's Department that helps the accused assert their rights.
San Francisco Police Department spokesperson Gordon Shyy would say only that the police follow the Department of Justice's Asset Forfeiture Policy Manual and that they "don't seize assets on the street, they take things as evidence."
But that "evidence" often stays in the bank accounts of police or prosecutors, subsidizing their operations. DOJ guidelines say that when assets from a criminal investigation cease to have evidentiary value, they can be returned through an administrative or civil process.
"Approximately half the time, people contest the amount or contest it in its entirety," said Assistant District Attorney Alex Bastian, who estimates that the San Francisco District Attorney's Office handles 200 to 250 asset forfeiture cases per year.
"There are certain situations where if a charge is dropped, there is still, in fact, a forfeiture proceeding that goes forward," Bastian explained. "There's a criminal proceeding beyond a reasonable doubt and the civil [case] is a preponderance of evidence and the burden of proof is on the party contesting the forfeiture."
Contesting an asset seizure can be difficult if the claimant is incarcerated or poor. Regulations seem designed to induce fatigue and resignation in those without a lawyer and the costs associated with retaining a lawyer often exceed the amount of money seized in the first place. In some cases, claimants have a right to court-appointed counsel, but they aren't made aware of that fact.
Gregoratos represented Walls and has, over the years, worked with many others like him who have been deprived of their property without due process.